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BEFORE
LD. SOLE ARBITRATOR;
DELHI
INTERNATIONAL ARBITRATION CENTER,
NEW
DELHI.
ARBITRATION CASE NO. DIAC/XXXX/03-21.
IN THE MATTER OF:-
XXXXXXXXXXXX : CLAIMANT
VERSUS
XXXXXXXXXXXX
: RESPONDENTS
EVIDENCE
BY WAY OF AFFIDAVIT OF THE CLAIMANT (CW1)
2.
I state that the Deponent is the absolute
and exclusive owners of Super Built Up area 1008 Sq. ft. and carpet area 865 Sq. ft. of the property
bearing no. xxx, xxxxxxx, New Delhi (hereinafter called as subject property).
3.
I further state that in xx xxxx, the
respondents approached the Deponent on behalf of respondent no. 1 and expressed
their desire to take the subject property on rent/lease for running the
business under the name and style ‘xxxxx Centre’’. Accordingly, the Deponent
let out the said premises to the respondents vide registered lease agreement
dated xxxxxx for a period of 09 years on monthly rental of Rs.xxxxx/- exclusive
of electricity and water charges and other charges as mentioned in the lease
agreement. That as per clause 6 of the Lease Agreement, the lock-in period for
the same was mutually decided to be xx years from the date of commencement. Copy
of Lease Agreement dated xxxx is Ex.CW1/1.
4.
I further state that the respondents
assured and represented to the Deponent that respondents are in-charge &
responsible for the day to day affairs of respondent no. 1 company and are all
designated Directors and Authorized Representatives of respondent no. 1. That
the respondents have breached the terms of the lease agreement and the
respondents are in gross violation of the terms of the lease deed.
5.
I further state that the respondents did
not paid the rent for more than two consecutive months i.e the period of xx nd xxxx
for the leased premises and even thereafter. Further, on the contrary the
respondents have sent an e-mail dated xxxxxx to the Deponent whereby
respondents have illegally terminated the lease agreement at their own whims
and fancies. That the Deponent has fulfilled all obligations as required by the
lease agreement, however, the respondents with malafide intent have sent
termination mail to the Deponent which is not tenable under the eyes of law. Copy
of email dated xxxxxx is Ex.CW1/2.
6.
I further state that it was to the
astonishment and dismay to the Deponent, when suddenly xxxx of respondents
hired persons / contractors entered the leased premises and took away all the
assets and all articles of their company in the early morning hours on xxxxxx.
The said action of the respondents are bad in law per-se, as the leased
premises were vacated without prior knowledge and intimation to the Deponent
coupled with the fact that there is arrears of rent for more than two months.
The said fact was duly intimated and acknowledged to the concerned police
station by registered letter / complaint.
7.
I further state that the Deponent had sent
a proposal to the respondents, keeping in view the light of the pandemic
situation and generously offered a substantial relief in rent vide letter and
email dated xxxxxx, in order to continue good relations with the respondents,
but the conduct of the respondents was rather indifferent, non-cooperative,
callous and evasive, which apparently shows the malafide intent on their part. Copy
of letter and email dated xxxxxx is Ex.CW1/3.
8.
I further state that the respondents have
vacated the leased premises and presently the Deponent is in absolute physical
possession of the leased premises. That the respondents despite vacating the
premises, are in arrear of rent for the month of xx and xx xxxx, which is due
towards them apart from the rent for the lock in period as mutually agreed
between both parties as per registered deed dated xx.xx.xxxx.
9.
I further state that by way of the legal
notice dated xx.xx.xxxx the Deponent in terms of the lease agreement, due to
gross violation and breach of terms of the lease agreement, and by virtue of
Clause 20.3 of the lease agreement terminated the lease, since the respondents
have not paid rent for two consecutive months, the said lease agreement stands
terminated. Although, the Deponent has taken the vacant physical possession of
the premises, the respondents are still liable to pay an outstanding rent for
the unpaid period of xxx and xx xxxx along with the rent for the period up-to xx
xxxx, being the agreed lock in period as per clause 6 of the Lease agreement
along with other charges incurred by the Deponent on account of assurances and
representations made by the respondents, that they will continue the lease
minimum up-to the lock in period. Copy of legal notice dated xx.xx.xxxx is Ex.CW1/4.
10.
I further state that as per clause 6 of
the Registered Lease Deed which categorically states that for ‘’any reason’’ of
termination of the lease, the lessee i.e. the respondents will have to pay rent
for the unused period of lock-in period.
11.
I further state that the Deponent has terminated
the lease agreement vide notice dated xx.xx.xxxx with respect to the said
leased premises on account of non-payment of rent, and accordingly, terminated
their said tenancy on the expiry of 15 days from the date of receipt of said
notice and also called upon the respondents to make the payment of arrears of
rent and rent for the unpaid lock in period amounting to Rs.xxxxx/- (Rs. xxxxx/- p.m. X 24 Months (24 Months Lock
in is remaining) – xx xxxx to xx xxxx) for the tenanted subject premises.
12.
I further state that the respondents have
breached the terms of the lease agreement and the respondents are in gross
violation of the terms of the lease deed and the respondents have not paid the
rent for more than two consecutive months i.e. the period of xx and xx, xxxx
for the leased premises in addition to the rent for the lock in period.
Further, on the contrary the respondents have sent an e-mail dated xx.xx.xxxx
to the Deponent whereby respondents have illegally terminated the lease agreement
at their own whims and fancies. That the Deponent have fulfilled all
obligations as required by the lease agreement, however, the respondents with
malafide intent have sent termination mail to the Deponent which is not tenable
under the eyes of law. That other issues/disputes along with the above said
issues have also been raised by the Deponent in their Legal notice dated xx.xx.xxxx
sent through the Counsel.
13.
I further state that by way of the notices
dated xx.xx.xxxx and xx.xx.xxxx, the Deponent terminated the lease agreement,
due to gross violation and breach of terms of the lease agreement, and by
virtue of Clause 20.3 of the lease agreement, since the respondents have not
paid rent for two consecutive months. Although, respondents have taken the actual
physical possession of the premises, the respondents are still liable to pay an
outstanding rent for the unpaid period of xx and xx xxxx along with the rent
for the period up-to xx xxxx, being the agreed lock in period as per clause 6
of the Lease agreement i.e. Rs. xxxxxxx/- in addition to other charges incurred
by the Deponent because of the mis-representations and false assurances made by
the respondents. Copy of legal notice dated xx.xx.xxxx is Ex.CW1/5 and copy
of reply filed by respondents dated xx.xx.xxxx is Ex.CW1/6.
14.
I further state that the Deponent based on
the assurances of the respondents, that they will continue with the leased
premises for the minimum lock in period which expires on xx xxxx, the Deponent
got the conversion of the leased premises to commercial and paid an amount of
Rs. xxxxx/- to the Municipal Corporation of Delhi on xxxxxx for the said
purpose. Had the Deponent known that the assurance of the respondents is
malafide and they do not intend to continue till the lock in period also, then
the Deponent would not have invested such amount for conversion of the
premises.
15.
I further state that the Deponent states
that the obligations, representations, warranties, covenants, averments and
promises under the Lease Agreement dated xx.xx.xxxx have turned out to be
false, incomplete and inaccurate and that respondents have defaulted and failed
to perform and discharge their part of payment to be made to the Deponent under
the said Agreement.
16.
I further state that the process provided
under Clause 28.1 is now exhausted on account of respondents lack of
cooperation and the said clause is being invoked by the Deponent by way of the
notice dated xx.xx.xxxx and made request to the respondents to either pay the
arrears of rent as claimed by the Deponent or appoint the Arbitrator for
adjudication of the dispute in terms of the agreement. Copy of legal arbitration
notice dated xx.xx.xxxx is Ex.CW1/7.
17.
I further state that the said Ld.
Arbitrator sent the notice dated xx.xx.xxxx to the respondents as well as the Deponent
for appearance and in response to the said notice, respondents sent an
objection letter dated xx.xx.xxxx and further also moved an application dated xx.xx.xxxx
under Section 13(2) r/w 16 of Arbitration and Conciliation Act whereby raising
objections by the respondents to discontinue the arbitral proceedings as well
as withdraw the notice of appearance dated xx.xx.xxxx. Copy of notice for
appearance by Ld. Arbitrator dated xx.xx.xxxx is Ex.CW1/8.
18.
I further state that on xx.xx.xxxx the Deponent
served the notice of invocation of the arbitral clause under the agreement
dated xx.xx.xxxx to the Respondents. It is trite to mention that the
respondents neither bothered to reply to the said arbitration notice despite
the fact that the same was duly received to the respondents, and only
thereafter at a belated stage they chose to object to the Ld. Arbitrator and
challenged the notice of the Arbitrator dated xx.xx.xxxx. Thus by such conduct
of the Respondents, it is evident that the Respondent is not only in the breach
of its contractual mandate but also disrespects the rule of law and the only
objective of the respondents is to delay the present dispute between the
parties. Copy of application filed by the respondents dated xx.xx.xxxx is Ex.CW1/9.
19.
I further state that thereafter on receipt
of objections from the respondents, the Sole Arbitrator appointed by the Deponent
was pleased to withdraw himself from the said proceedings and the same was
communicated by e-mail dated xx.xx.xxxx sent to the Deponent as well
respondents.
20.
I further state that the Deponent has been
compelled to invoke the arbitration clause, which had been incorporated to
combat such disputes arising between the parties for the resolving of disputes or
settlements of such matters between the parties relating to the agreement as
narrated above.
21.
I further state that in light of the
aforesaid, the Deponent herein was
constrained to approach the Hon’ble Delhi High Court and file Arbitration
Petition bearing no. xxx of xxxx under Section 11(6) of the Arbitration and
Conciliation Act, 1996 for the appointment of sole arbitrator under the aegis
of Delhi International Arbitration Center. Accordingly the Hon’ble High Court
vide order dated xx.xx.xxxx was pleased to refer the disputes under the ageism
of DIAC and constituted the present arbitration tribunal. Copy of the Arbitration Petition bearing No.xxx/xxxx
filed by the Deponent before the Hon’ble High Court of Delhi is Ex.CW1/10 and
copy of the order dated xxxxx passed by Hon’ble High Court in Arbitration
Petition bearing No.xxx/xxxx is Ex.CW1/11.
22.
I further state that the Deponent received
the mail of the DIAC on xx.xx.xxxx to submit the statement of claim within 15
days, however due to lockdown scenario in Delhi and also the Deponent and his
wife who suffered from COVID-19 infection, which unfortunately the wife of the Deponent
expired on xx.xx.xxxx due to corona; the Deponent was not able to file the
statement of claim, and is now filing the same.
23.
I
hereby state that whatever is stated hereinabove is true and correct to the
best of my knowledge.
DEPONENT
VERIFICATION :-
Verified at Delhi on this _____, day
of December, xxxx that the contents of paras 1 to 23 of my above evidence affidavit
are true and correct to the best of my knowledge and belief and nothing
material has been concealed therefrom.
DEPONENT
